Complainant is Pentair, Inc. of Golden Valley, Minnesota, United States of America (“United States”), represented by Roetzel & Andress LPA, United States.
Respondent is Robert Stewart / HUSH IP LLC of Phoenix, Arizona, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with PSI-USA, Inc. dba Domain Robot (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 14, 2016. On October 17, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 18, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 19, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 8, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 10, 2016.
The Center appointed Timothy D. Casey as the sole panelist in this matter on December 1, 2016. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
Complainant is a provider of pumps; water storage tanks; water filters; water filtration, treatment, reverse osmosis, softening, deionization, desalination, sterilization, and storage equipment and systems; pool and spa vacuums and cleaners; hydraulic controls; spraying equipment; valves; automatic valves; impellers; electrical controllers; remote controllers; metal and non-metal cabinets and sheet metal boxes for use in housing controls and electrical and electronic equipment; water heaters; pool, spa, and landscape lighting equipment; thermal management systems and equipment; and fiberglass reinforced, plastic, and non-metallic containers for industrial, residential, and commercial use.
Complainant (and its various subsidiaries and affiliates) own rights in the United States, India, and other countries in and to various PENTAIR trademarks, including numerous applications and registrations (the “PENTAIR Trademarks”), including Application No. 2,380,737 in India and Registration Nos. 2,573,714 (registered on May 28, 2002) and 4,348,967 (registered on June 11, 2013) in the United States, and have used the PENTAIR Trademarks for the noted goods since at least as early as 1999. Complainant has owned the domain names since 1996 and since 1999.
The disputed domain name was registered on December 28, 2013. The disputed domain name currently resolves to a website containing links to webpages offering third party goods for sale that are similar or related to the noted goods, including water treatment equipment, water filtration equipment, and reverse osmosis equipment. 5. Parties’ Contentions A. Complainant
Complainant contends the disputed domain name is substantially identical and confusingly similar, phonetically, visually and in overall commercial impression, to the PENTAIR Trademarks and incorporates one or more of the PENTAIR Trademarks in its entirety. The mere addition of the descriptive term “water” and the geographically descriptive term “India” are not sufficient to differentiate or distinguish the disputed domain name from the PENTAIR Trademarks.
Complainant further contends that Respondent has no right or legitimate interest in the disputed domain name and that Respondent registered and is using the disputed domain name in bad faith. Respondent is not commonly known by the disputed domain name and has never been authorized by Complainant to use the PENTAIR Trademark. Complainant also argues that Respondent’s use of the disputed domain name seeks to capitalize on Complainant’s goodwill in its PENTAIR Trademarks by diverting users otherwise looking for Complainant’s products.
As for evidence of bad faith, Complainant alleges Respondent was placed on constructive notice of the PENTAIR Trademarks by virtue of Complainant’s registrations of the same, which preceded Respondent’s registration of the disputed domain name. Despite receiving a cease-and-desist letter from Complainant on July 29, 2016, Respondent continued use of the disputed domain name. Respondent’s use of the disputed domain name takes advantage of the confusing similarity to the PENTAIR Trademarks and enables Respondent to potentially profit from such confusion. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
In view of Respondent’s failure to reply to Complainant’s contentions, the Panel will treat Complainant’s contentions as true and undisputed unless it is unreasonable or unnecessary to do otherwise. A. Identical or Confusingly Similar
Complainant owns a number of applications and registrations for the PENTAIR Trademarks in the United States, India and elsewhere for goods associated with water treatment, processing and filtration, among other goods. Accordingly, the Panel finds that Complainant has trademark rights in the PENTAIR Trademarks.
The disputed domain name incorporates the entirety of the PENTAIR Trademarks. While the disputed domain name incorporates other descriptive terms, such as “water” and “India,” the additional terms do nothing to distinguish the disputed domain name from the PENTAIR Trademarks because the incorporated terms only serve to associate “pentair” with the goods offered by Complainant in association with the PENTAIR Trademarks, including water related products in India. As such, the disputed domain name is confusingly similar to the PENTAIR Trademarks.
The Panel finds that the disputed domain name is confusingly similar to a trademark in which Complainant has rights. B. Rights or Legitimate Interests
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. Respondent does not appear to be commonly known by the disputed domain name. Complainant has not authorized Respondent to use or register the disputed domain name. While Respondent’s website links to webpages promoting various products, many of the products are related to or identical to the goods offered by Complainant, and in some cases in competition with Complainant’s goods. As such, consumers looking to purchase Complainant’s products or seeking to find Complainant’s website, might be mistakenly diverted to Respondent’s website and linked webpages. Accordingly, the Panel does not view Respondent’s use of the disputed domain name, to draw traffic to Respondent’s website and then divert that traffic to competitive businesses, as creating any rights or legitimate interests in the disputed domain name.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Given the timing of Complainant’s registration of the PENTAIR Trademarks and use in association with the noted goods, and the timing of Respondent’s subsequent registration of the disputed domain name, using terms that are clearly associated with Complainant’s goods, registration of the disputed domain name was more likely than not in bad faith. The disputed domain name will more likely than not attract users to Respondent’s websites thinking the websites are somehow associated with Complainant’s goods, only to result in the users being diverted to Respondent’s website and competitive goods. Further, Respondent’s failure to reply and contend otherwise, and the lack of any evidence of possible good faith use leaves the Panel with no choice but to find the disputed domain name was registered and used in bad faith.
The Panel concludes that the disputed domain name was registered and used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to Complainant.
Timothy D. Casey
Sole Panelist
Date: December 12, 2016
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